Numerous state statues grant municipalities the authority to create and manage public cemeteries. This e-letter explores concepts related to municipalities operating local cemeteries, including legal principles relating to burial space ownership and new case law concerning legal liability in the event of burial mistakes.
MUNICIPAL CONTROL OF CEMETERIES
Michigan treats the purchase of a cemetery space as a burial right, which may be assigned and is legally enforceable as a property right. That right is still subject to public control and regulation, which has been delegated to municipalities by the legislature through various state statutes. Generally, municipal control of cemeteries comes from the Cemetery or Burial Grounds Act. That Act authorizes municipalities to own or control cemetery or burial grounds; to provide for perpetual care and maintenance and to provide for endowment and perpetual care funds. MCL 128.1. Of course, a municipality must also establish, designate, and sell the lots/spaces for purchase. The Prepaid Funeral and Cemetery Sales Act (“PFCSA”) MCL 328.211 et seq., contains provisions with respect to the sale of cemetery services for example, and requires “accurate accounts, books, and records of all transactions and accounts . . .”
A municipality’s right to control its cemeteries must not be exercised in an arbitrary, unreasonable, or capricious manner. Individuals who obtain or purchase a burial right in cemetery space/lot “have an undoubted right to care for the lot in person or select others to do so for them, conforming, however, to reasonable rules and regulations of conduct.” Michigan courts have accepted the theory that a cemetery is not only a place where the dead may be buried, but one in which the living may express their affection and respect of the dead by marking and decorating the place of interment and beautifying its surroundings. But, the Courts also recognize that municipalities also possess interests that necessitate the adopting of rules and regulations pertaining to certain cemetery conduct. Many municipalities adopt ordinances or rules and regulations pertaining to the sale and purchase of burial spaces in municipal cemeteries, for example. Below, find examples of common rules and regulations:
- Granting the authority to place a cap on the number of lots/spaces that may be sold to one person;
- Requiring purchasers be a resident of the municipality, or an immediate family member of a deceased individual;
- A fee schedule for associated activities, including purchase, interment, transfers, etc.; and
- Requiring/allowing re-purchase of lots/spaces by the municipality.
When considering rules or regulations pertaining to public cemeteries, municipalities should be sure to appropriately tailor provisions that would operate to take away a person’s right to care for a lot. Rules and regulations that relate to a general plan for improving a cemetery would likely supersede and control. Alternatively, an action or regulation by a municipality that arbitrarily, unreasonably, or capriciously frustrates the exercise of someone’s right to care for a lot would run afoul of established legal principles.
NEW CASE LAW CONCERNING MUNICIPAL LIABILITY UNDER THE PFCSA
In a recent case before the Michigan Court of Appeals, a Michigan city had been sued following a mistaken burial. An individual purchased a burial plot located directly besides her late husband in 2013. The individual visited her husband’s grave in 2020 and discovered that a different woman had been buried in the plot that she had purchased for herself, who had been mistakenly buried there. The purchaser argued, in essence, that the city had a duty to reserve her pre-purchased burial plot and that it breached that duty by burying another person in her plot.
For example, she argued that the conduct alleged amounted to a violation of a state statute that required the keeping of accurate books, the Prepaid Funeral and Cemetery Sales Act (“PFCSA”) MCL 328.211 et seq., and that such failure resulted in the mistaken burial. The city argued that the claim should be dismissed as a tort liability claim barred by statutory governmental immunity under the Governmental Tort Liability Act (“GTLA”), MCL 691.1401 et seq. This is because the GTLA bars tort claims against a governmental agency engaged in the exercise or discharge of a governmental function when the alleged torts occurred, unless the claim fits within a statutory exception. The parties did not dispute that the city was engaged in the exercise of a governmental function when the alleged torts occurred, nor did they dispute that the GTLA’s enumerated statutory exceptions to governmental immunity did not apply. However, the purchaser argued that the following language under the PFCSA created a statutory exception to the general rule under the GTLA that governmental agencies are immune from tort liability when performing a governmental function:
“The department or any other person, in order to force compliance with this act, may bring an action in a circuit court in any county in which the registrant or any other person has solicited or sold prepaid contracts, whether or not that person has purchased a prepaid contract or is personally aggrieved by a violation of this act. The court may award damages, issue equitable orders in accordance with the Michigan court rules to restrain conduct in violation of this act, and award reasonable attorney fees and costs to a prevailing party.” MCL 328.234.
The Court of Appeals agreed. The Court of Appeals held that because the PFCSA defined the word “person” to include a governmental agency, the legislature created an exception to governmental immunity from tort liability under the GTLA in the PFCSA because it included governmental agencies among those “persons” subject to a cause of action for damages.
Municipalities should be cognizant of potential legal liability, including tort liability, in light of this holding. Our office is happy to provide assistance to municipalities working through situations involving burial rights, such as by identifying options, pathways, or strategies intended to limit, reduce, or eliminate legal liability. We can also assist with the drafting or review of cemetery rules, regulations or ordinances, which can be appropriately tailored to the municipality’s interests and adopt procedures intended to safeguard a municipality.
By Kendall O’Connor
This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
 Spencer v Flint Mem Park Ass’n, 4 Mich App 157, 169; 144 NW2d 622, 628 (1966).
 Gathright v Mission Hills Mem Gardens, Inc, ___NW2d___; 2023 Mich. App. LEXIS 4330, at *2 (Ct App, June 15, 2023).